The Corner

Judicial Persuasion

Don’t miss Princeton’s Robby George, writing at the Washington Post on Neil Gorsuch. He gets at a point about the nature of persuasion in our polarized age that has been on my mind too since Gorsuch’s name came up as a possibility for the Court.

I met Gorsuch (in George’s company, as it happens) at a conference about a decade ago, and was very struck then by a point Robby highlights:

…he is not fiery or pugnacious. Rather, his demeanor is scholarly — one might even say bookish. He is not a fierce debater. I recall being with him at an academic conference at which a graduate student contradicted and challenged a comment he had made. Far from bristling or even returning fire, he encouraged the student to develop her argument further, graciously acknowledging merit in the point she had made.

Likewise in the courtroom, he does not interrogate, much less intimidate, the lawyers who appear before him. It is truer to say that he engages them in conversations that enable him to explore the strengths and weaknesses of arguments advanced in their written briefs or address issues he thinks are important but that did not receive sufficient attention in those submissions.

This really comes across in Gorsuch’s 2006 book on assisted suicide too. He goes to extraordinary lengths to fairly (and sometimes frankly more fairly than they deserve) recount arguments he disagrees with and then to explain in intricate detail just where his disagreement lies and what it’s rooted in. The tone is firm and confident and his writing has real force, but it is always calm. 

It’s an attitude that ought to serve him well in confirmation hearings, and in moving his colleagues on the Court and the readers of his future opinions should the country be fortunate enough to see him confirmed. Our public life could use a calm, fair voice these days. 

Truly an excellent choice. 

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.